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Home Office policy on age assessment ‘unlawful’

The Home Office’s policy of judging the age of unaccompanied children seeking asylum based on their appearance has been ruled unlawful by the High Court.

The judgment comes following a case involving a 16 year old unaccompanied Sudanese boy who immigration officials had wrongly judged to be an adult when he arrived in the UK and claimed asylum in 2014.

At the moment, the Home Office allows officials to treat someone claiming to be a child as an adult if they believe they appear to be ‘significantly over the age of 18’.

The Refugee Council has long called for this policy to be changed as it puts children’s safety at risk when immigration officials get it wrong as children are left without the specialist support and protection they need.

The boy involved in the court case, known as ‘AA’, did later have an age assessment by social workers from Wolverhampton City Council which confirmed him as being 16. However, before social workers had a chance to communicate this result, the Home Office had detained the boy, locking him up in an adult immigration removal centre.

It took two weeks of the Refugee Council working tirelessly with Bhatia Best law firm before the boy was finally released.

In a ruling which will have ‘far reaching consequences’ Mr Justice Silber today ruled that someone’s age is a matter of ‘objective fact’ and cannot be based on physical appearance or demeanour.

This means that the Home Office’s current policy is unlawful and that children who have been affected by it could be entitled to damages.

Between 2010 and 2014 the Refugee Council helped secure the release of over 120 unaccompanied children from Britain’s murky immigration detention estate. Since 2015 until the end of March this year we helped release a further 21 young people from detention. We suspect this figure to be the tip of the iceberg, with more cases of children being wrongly detained as adults going unreported and unchallenged.

Many other lone children will also be wrongly assessed as adults and never detained.

Refugee Council Policy Manager Judith Dennis said: "This judgment is extremely significant and sends a clear message to the Home Office that its current policy is both unlawful and indefensible.

"For too long the Government has been jeopardising the safety of children who it should be protecting.

"It’s clear that the stakes are far, far too high for children to be arbitrarily thrown behind bars with adults on the basis of guesswork. Instead of wasting public money fighting this ruling, the Government should instead ensure that everyone who claims to be a child receives a sensitive, timely, lawful and expert led age assessment."

Solicitor and Head of our Public Law and Community Care Team Stuart Luke said: "The judgment has far reaching consequences for the Home Office’s Assessing Age Policy which permits detention of children assessed to be significantly over 18 years of age based on their appearance. In finding that the question of age is a matter of ‘objective fact’ the judgment renders unlawful the Home Office’s policy of conducting subjective assessments of age and detaining pursuant to a reasonable belief that a child looks significantly over 18.

"The judgment paves the way for claims for immediate release and also for significant damages for hundreds of asylum seeking children."